<PAGE> 1
As filed with the Securities and Exchange Commission on July 28, 1998
Registration No. 333-52673
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GLOBAL VACATION GROUP, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
NEW YORK 4725 13-1894567
(State of Incorporation) (Primary S.I.C. Code Number) (IRS Employer Identification No.)
</TABLE>
1420 NEW YORK AVENUE, N.W., SUITE 550
WASHINGTON, DC 20005
(202) 347-1800
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ROGER H. BALLOU
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
GLOBAL VACATION GROUP, INC.
1420 NEW YORK AVENUE, N.W., SUITE 550
WASHINGTON, DC 20005
(202) 347-1800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
<TABLE>
<S> <C>
DAVID B.H. MARTIN, ESQ. BRENT B. SILER, ESQ.
HOGAN & HARTSON L.L.P. HALE AND DORR LLP
555 13TH STREET, N.W. 1455 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, DC 20004 WASHINGTON, DC 20004
(202) 637-5600 (202) 942-8400
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE TO AMENDMENT NO. 4
This Amendment No. 4 to the Global Vacation Group, Inc. Registration
Statement on Form S-1 has been filed solely for the purpose of filing certain
exhibits to the Registration Statement.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all fees and expenses, other than the
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of the Common Stock being registered. All amounts shown are
estimates except for the registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
AMOUNT
----------
<S> <C>
Securities and Exchange Commission registration fee......... $ 18,659
NASD filing fee............................................. 6,825
NYSE listing fee............................................ 150,000
Blue sky qualification fees and expenses.................... 12,000
Accounting fees and expenses................................ 1,400,000
Legal fees and expenses..................................... 350,000
Printing and engraving expenses............................. 300,000
Transfer agent and registrar fees........................... 15,000
Miscellaneous expenses...................................... 247,516
----------
Total............................................. $2,500,000
==========
</TABLE>
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* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Sections 721 through 725 of the Business Corporation Law of the State
of New York (the "NYBCL"), the Registrant has broad powers to indemnify its
directors, officers and other employees. These sections (i) provide that the
statutory indemnification and advancement of expenses provisions of the NYBCL
are not exclusive, provided that no indemnification may be made to or on behalf
of any director or officer if a judgment or other final adjudication adverse to
the director or officer establishes that his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and were material
to the cause of action so adjudicated, or that he or she personally gained in
fact a financial profit or other advantage to which he or she was not legally
entitled, (ii) establish procedures for indemnification and advancement of
expenses that may be contained in the certificate of incorporation or bylaws,
or, when authorized by either of the foregoing, set forth in a resolution of the
shareholders or directors or an agreement providing for indemnification and
advancement of expenses, (iii) apply a single standard for statutory
indemnification for third-party and derivative suits by providing that
indemnification is available if the director or officer acted in good faith, for
a purpose which he or she reasonably believed to be in the best interests of the
corporation, and in criminal actions, had no reasonable cause to believe that
his or her conduct was unlawful and (iv) permit the advancement of litigation
expenses upon receipt of an undertaking to repay such advance if the director or
officer is ultimately determined not to be entitled to indemnification or to the
extent the expenses advanced exceed the indemnification to which the director or
officer is entitled. Section 726 of the NYBCL permits the purchase of insurance
to indemnify a corporation or its officers and directors to the extent
permitted.
As permitted by Section 721 of the NYBCL, the Registrant's Amended and
Restated By-laws (the "By-laws") provide that the Registrant shall indemnify its
officers and directors, as such, to the fullest extent permitted by applicable
law, and that expenses reasonably incurred by any such officer or director in
connection with a threatened or actual action or proceeding shall be advanced or
promptly reimbursed by the Registrant in advance of the final disposition of
such action or proceeding under the circumstances permitted by the NYBCL.
The Registrant's Restated Certificate of Incorporation further provides
that no director of the Registrant shall be held personally liable to the
Registrant or its shareholders for damages for any breach of duty in his or her
capacity as a director unless a judgment or other final adjudication adverse to
such director establishes that
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<PAGE> 4
(i) such director's acts or omissions were in bad faith or involved intentional
misconduct or a knowing violation of law, or (ii) such director personally
gained in fact a financial profit or other advantage to which such director was
not legally entitled, or (iii) such director's acts violated Section 719 of the
NYBCL.
The Registrant intends to purchase directors' and officers' liability
insurance on behalf of its directors and others.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The transactions described below do not reflect a 12.2-for-1 split of the
Company's common stock to be effected prior to completion of this offering.
(a) On March 27, 1998, pursuant to a Recapitalization Agreement dated as of
March 18, 1998 among Thayer Equity Investors III, L.P. ("Thayer"), the
Registrant, Allied Tours Holding Corp. ("Allied Holding") and the shareholders
of Allied Holding (the "Recapitalization Agreement"), the Registrant was
recapitalized (the "Recapitalization") and issued (i) 247,215 shares of common
stock, par value $.01 per share ("Common Stock"), and 22,249 shares of Class A
Convertible Preferred Stock, par value $1,000 per share ("Convertible Preferred
Stock"), to Thayer in respect of its interest in the Registrant as of the time
of the Recapitalization and (ii) 39,034 shares of Common Stock and 3,513 shares
of Convertible Preferred Stock to Allied Holding in respect of its interest in
the Registrant as of the time of the Recapitalization. These shares were issued
without registration under the Securities Act of 1993, as amended (the
"Securities Act"), in reliance upon an exemption from registration contained in
Section 3(a)(9) thereof ("Section 3(a)(9)").
(b) On March 30, 1998, in connection with an Equity Purchase Agreement (the
"Thayer Purchase Agreement") dated as of March 30, 1998 among the Registrant,
Thayer TC Co-Investors, LLC, an affiliate of Thayer, and 16 other individuals or
entities (collectively, the "Investors"), the Registrant issued (i) a total of
266,425.4 shares of Common Stock to the Investors at a purchase price of $10 per
share for an aggregate consideration of $2,664,254 and (ii) a total of 1,227.64
shares of Convertible Preferred Stock to the Investors at a purchase price of
$1,000 per share for an aggregate consideration of $1,227,640. These shares were
issued without registration under the Securities Act in reliance upon an
exemption from registration contained in Section 4(2) thereof ("Section 4(2)")
and Rule 506 of Regulation D promulgated thereunder ("Rule 506").
(c) On March 30, 1998, in connection with Senior Management Agreements
entered into with each of Roger H. Ballou, the Registrant's Chief Executive
Officer and Chairman, J. Raymond Lewis, Jr., the Registrant's President and
Chief Operating Officer, and Walter S. Berman, the Registrant's Executive Vice
President and Chief Financial Officer, the Registrant issued to Messrs. Ballou,
Lewis and Berman (i) a total of 57,500 shares of Common Stock at a purchase
price of $10 per share for an aggregate consideration of $575,000 and (ii) a
total of 425 shares of Convertible Preferred Stock at a purchase price of $1,000
per share for an aggregate consideration of $425,000. These shares were issued
without registration under the Securities Act in reliance upon an exemption from
registration contained in Section 4(2) and Rule 506.
(d) Between April 3, 1998 and May 5, 1998, pursuant to the Thayer Purchase
Agreement, the Registrant issued 22,751 shares of Convertible Preferred Stock to
Thayer at a purchase price of $1,000 per share for an aggregate consideration of
$22,751,000. These shares were issued without registration under the Securities
Act in reliance upon an exemption from registration contained in Section 4(2)
and Rule 506.
(e) On March 30, 1998, in connection with an Equity Subscription Agreement
dated as of such date by and among the Registrant and two former shareholders of
Haddon Holidays, Inc. ("Haddon"), the Registrant issued to such persons (i) a
total of 5,000 shares of Common Stock at a purchase price of $10 per share for
an aggregate consideration of $50,000 and (ii) a total of 450 shares of
Convertible Preferred Stock at a purchase price of $1,000 per share for an
aggregate consideration of $450,000. These shares were issued without
registration under the Securities Act in reliance upon an exemption from
registration contained in Section 4(2) and Rule 506.
(f) On May 4, 1998, in connection with an Equity Subscription Agreement
dated as of April 30, 1998 by and among the Registrant and a former affiliate of
MTI Vacations, Inc. ("MTI"), the Registrant issued to such person an 24,000
shares of Common Stock at a purchase price of $10 per share for an aggregate
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<PAGE> 5
consideration of $240,000 and 2,160 shares of Convertible Preferred Stock at a
purchase price of $1,000 per share for an aggregate consideration of $2,160,000.
These shares were issued without registration under the Securities Act in
reliance upon an exemption from registration contained in Section 4(2) and Rule
506.
Each of the foregoing transactions was effected without an underwriter.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
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<C> <S> <C>
1.1* Form of Underwriting Agreement
3.1 Restated Certificate of Incorporation of the Registrant
3.2+ Amended and Restated By-laws of the Registrant
3.3 Form of Restated Certificate of Incorporation of the
Registrant to be effective following completion of the
Registrant's initial public offering.
4.1 Form of Specimen Common Stock Certificate
5.1 Opinion of Hogan & Hartson L.L.P.
10.1+ Recapitalization Agreement dated as of March 18, 1998 among
the Registrant, Thayer, Allied Holding and the shareholders
of Allied Holding
10.2+ Equity Purchase Agreement dated as of March 30, 1998 between
the Registrant and Thayer and certain other purchasers
10.3+ Equity Subscription Agreement dated as of March 30, 1998 by
and among the Registrant, Ralph M. Caliri and William W.
Webber
10.4+ Equity Subscription Agreement dated as of April 30, 1998
between the Registrant and James F. Miller
10.5+ Registration Rights Agreement dated as of June 12, 1998 by
and among the Registrant, Thayer and certain shareholders of
the Registrant
10.6+ Stock Purchase Agreement dated as of March 30, 1998 by and
among the Registrant, Haddon and the shareholders of Haddon
10.7+ Stock Purchase Agreement dated as of April 20, 1998 by and
among the Registrant, Classic Custom Vacations, Inc.
("Classic") and the stockholders of Classic
10.8+ Asset Purchase Agreement dated as of April 30, 1998 by and
among the Registrant, MTI and James F. Miller
10.9+ Stock Purchase Agreement dated as of May 4, 1998 by and
among the Registrant, Globetrotters, Inc. and Robert A.
Grinberg.
10.10+ Professional Services Agreement dated as of March 30, 1998
between the Registrant and TC Management Partners, LLC
10.11+ Credit Agreement dated as of March 27, 1998 by and among the
Registrant, the lenders party thereto and The Bank of New
York, as administrative agent
10.12+ Amendment No. 1 and Consent dated as of April 8, 1998 to
Credit Agreement dated as of March 27, 1998 by and among the
Registrant, the lenders party thereto and The Bank of New
York as administrative agent
10.13+ Amendment No. 2 dated as of May 5, 1998 to Credit Agreement
dated as of March 27, 1998 by and among the Registrant, the
lenders party thereto and The Bank of New York as
administrative agent
10.14+ Registrant's 1998 Stock Option Plan
10.15+ Senior Management Agreement dated as of March 30, 1998
between the Registrant and Roger H. Ballou
10.16+ Senior Management Agreement dated as of March 30, 1998
between the Registrant and J. Raymond Lewis, Jr.
10.17+ Senior Management Agreement dated as of March 30, 1998
between the Registrant and Walter S. Berman
10.18+ Consulting Agreement dated as of March 27, 1998 by and
between the Registrant and Stanley Fisher
</TABLE>
II-3
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<TABLE>
<C> <S> <C>
10.19+ Employment Agreement dated as of March 18, 1998 by and
between the Registrant and Michael Fisher
10.20+ Employment Agreement dated as of March 18, 1998 by and
between the Registrant and Gregory Fisher
10.21 Amendment No. 1 dated as of June 24, 1998 to Senior
Management Agreement dated as of March 30, 1998 between the
Registrant and Mr. Ballou
10.22 Amendment No. 1 dated as of June 24, 1998 to Senior
Management Agreement dated as of March 30, 1998 between the
Registrant and Mr. Lewis
10.23 Amendment No. 1 dated as of June 24, 1998 to Senior
Management Agreement dated as of March 30, 1998 between the
Registrant and Mr. Berman
11.1+ Earnings Per Share
21.1+ Subsidiaries of the Registrant
23.1+ Consent of Arthur Andersen LLP (Financial Statements of the
Registrant)
23.2+ Consent of Arthur Andersen LLP (Financial Statements of
Classic)
23.3+ Consent of Arthur Andersen LLP (Financial Statements of
Haddon)
23.4+ Consent of Deloitte & Touche LLP (Financial Statements of
Classic)
23.5+ Consent of PricewaterhouseCoopers LLP (Financial Statements
of MTI)
23.6+ Consent of James M. Sullivan (Director Nominee)
23.7 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
24.1+ Power of Attorney
27.1+ Financial Data Schedule
</TABLE>
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+ Previously filed.
* To be filed by amendment.
(b) Financial Statement Schedule
The following schedule to the Financial Statements of the Registrant was
previously filed as a part of this Registration Statement:
Schedule II -- Allowance for Doubtful Accounts
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as may be required by the
underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 14 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
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<PAGE> 7
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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<PAGE> 8
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF WASHINGTON, DISTRICT OF
COLUMBIA, ON THE 27TH DAY OF JULY, 1998.
GLOBAL VACATION GROUP, INC.
By: /s/ ROGER H. BALLOU
------------------------------------
ROGER H. BALLOU
CHIEF EXECUTIVE OFFICER AND CHAIRMAN
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
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<S> <C> <C>
/s/ ROGER H. BALLOU Chief Executive Officer July 27, 1998
- ----------------------------------------------------- and Chairman
ROGER H. BALLOU (Principal Executive Officer)
/s/ WALTER S. BERMAN Executive Vice President July 27, 1998
- ----------------------------------------------------- and Chief Financial Officer
WALTER S. BERMAN (Principal Financial and
Accounting Officer)
* Director
- -----------------------------------------------------
FREDERIC V. MALEK
* Director
- -----------------------------------------------------
CARL J. RICKERTSEN
*By: /s/ ROGER H. BALLOU Attorney-in-fact July 27, 1998
-------------------------------------------------
ROGER H. BALLOU
</TABLE>
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<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE
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<C> <S> <C>
1.1* Form of Underwriting Agreement
3.1 Restated Certificate of Incorporation of the Registrant
3.2+ Amended and Restated By-laws of the Registrant
3.3 Form of Restated Certificate of Incorporation of the
Registrant to be effective following completion of the
Registrant's initial public offering.
4.1 Form of Specimen Stock Certificate
5.1 Opinion of Hogan & Hartson L.L.P.
10.1+ Recapitalization Agreement dated as of March 18, 1998 among
the Registrant, Thayer, Allied Holding and the shareholders
of Allied Holding
10.2+ Equity Purchase Agreement dated as of March 30, 1998 between
the Registrant and Thayer and certain other purchasers
10.3+ Equity Subscription Agreement dated as of March 30, 1998 by
and among the Registrant, Ralph M. Caliri and William W.
Webber
10.4+ Equity Subscription Agreement dated as of April 30, 1998
between the Registrant and James F. Miller
10.5+ Registration Rights Agreement dated as of June 12, 1998 by
and among the Registrant, Thayer and certain shareholders of
the Registrant
10.6+ Stock Purchase Agreement dated as of March 30, 1998 by and
among the Registrant, Haddon and the shareholders of Haddon
10.7+ Stock Purchase Agreement dated as of April 20, 1998 by and
among the Registrant, Classic Custom Vacations, Inc.
("Classic") and the shareholders of Classic
10.8+ Asset Purchase Agreement dated as of April 30, 1998 by and
among the Registrant, MTI and James F. Miller
10.9+ Stock Purchase Agreement dated as of May 4, 1998 by and
among the Registrant, Globetrotters, Inc. and Robert A.
Grinberg.
10.10+ Professional Services Agreement dated as of March 30, 1998
between the Registrant and TC Management Partners, LLC
10.11+ Credit Agreement dated as of March 27, 1998 by and among the
Registrant, the lenders party thereto and The Bank of New
York, as administrative agent
10.12+ Amendment No. 1 and Consent dated as of April 8, 1998 to
Credit Agreement dated as of March 27, 1998 by and among the
Registrant, the lenders party thereto and The Bank of New
York as administrative agent
10.13+ Amendment No. 2 dated as of May 5, 1998 to Credit Agreement
dated as of March 27, 1998 by and among the Registrant, the
lenders party thereto and The Bank of New York as
administrative agent
10.14+ Registrant's 1998 Stock Option Plan
10.15+ Senior Management Agreement dated as of March 30, 1998
between the Registrant and Roger H. Ballou
10.16+ Senior Management Agreement dated as of March 30, 1998
between the Registrant and J. Raymond Lewis, Jr.
10.17+ Senior Management Agreement dated as of March 30, 1998
between the Registrant and Walter S. Berman
10.18+ Consulting Agreement dated as of March 27, 1998 by and
between the Registrant and Stanley Fisher
10.19+ Employment Agreement dated as of March 18, 1998 by and
between the Registrant and Michael Fisher
10.20+ Employment Agreement dated as of March 18, 1998 by and
between the Registrant and Gregory Fisher
10.21 Amendment No. 1 dated as of June 24, 1998 to Senior
Management Agreement dated as of March 30, 1998 between the
Registrant and Mr. Ballou
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
PAGE
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<C> <S> <C>
10.22 Amendment No. 1 dated as of June 24, 1998 to Senior
Management Agreement dated as of March 30, 1998 between the
Registrant and Mr. Lewis
10.23 Amendment No. 1 dated as of June 24, 1998 to Senior
Management Agreement dated as of March 30, 1998 between the
Registrant and Mr. Berman
11.1+ Earnings Per Share
21.1+ Subsidiaries of the Registrant
23.1+ Consent of Arthur Andersen LLP (Financial Statements of the
Registrant)
23.2+ Consent of Arthur Andersen LLP (Financial Statements of
Classic)
23.3+ Consent of Arthur Andersen LLP (Financial Statements of
Haddon)
23.4+ Consent of Deloitte & Touche LLP (Financial Statements of
Classic)
23.5+ Consent PricewaterhouseCoopers LLP (Financial Statements of
MTI)
23.6+ Consent of James M. Sullivan (Director Nominee)
23.7 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
24.1+ Power of Attorney
27.1+ Financial Data Schedule
</TABLE>
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+ Previously filed.
* To be filed by amendment.
<PAGE> 1
EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
GLOBAL VACATION GROUP, INC.
UNDER SECTION 807 OF THE
BUSINESS CORPORATION LAW
The undersigned, being, respectively the Vice President and
Secretary and the Assistant Secretary of Global Vacation Group, Inc. (the
"CORPORATION"), do hereby certify as follows:
1. The name of the Corporation is Global Vacation Group, Inc.
The name under which the corporation originally was formed is Allied Bus Corp.
2. The Certificate of Incorporation originally was filed with
the Department of State of New York on July 17, 1959.
3. The Restated Certificate of Incorporation of the
Corporation as now in full force and effect hereby is amended to effect the
following changes as authorized by Section 801 of the New York Business
Corporation Law (the "NYBCL"):
(a) To combine the issued and outstanding shares of
common stock, $.01 par value (the "COMMON STOCK"), of the Company by multiplying
the number of shares of Common Stock held by each shareholder as of the date
this Restated Certificate of Incorporation is filed with the Department of State
of the State of New York by a factor, the numerator of which is 12.2 and the
denominator of which is 13.3; and
(b) To provide that the total number of authorized
shares of Common Stock shall be unchanged and shall remain as 60,000,000 and
that the par value of the Common Stock also shall be unchanged and shall remain
as $.01 per share of Common Stock.
4. To effect the foregoing amendments the Certificate of
Incorporation of the Corporation hereby is amended and restated in its entirety
to read as follows (as so amended and restated, the "CERTIFICATE OF
INCORPORATION"):
ARTICLE I
The name of the Corporation is Global Vacation Group, Inc.
ARTICLE II
The office of the Corporation in the State of New York is
located in the County of New York.
<PAGE> 2
ARTICLE III
The Secretary of State is designated as agent of the
Corporation upon whom process against it may be served. The address to which the
Secretary of State shall mail a copy of any process against the Corporation
served upon him or her is 1420 New York Avenue, N.W., Suite 550, Washington,
D.C. 20005.
The name and address of the registered agent of the
corporation upon whom process against the corporation may be served is CT
Corporation System, 1633 Broadway, New York, NY 10019.
ARTICLE IV
The nature of the business of the Corporation and the purposes
for which it is organized are to engage in any business and in any lawful act or
activity for which corporations may be organized under the NYBCL. For the
accomplishment of the aforesaid purposes and in furtherance thereof, the
Corporation shall have, and may exercise, all powers and privileges now or
hereafter granted or available under the laws of the State of New York to such
corporations.
ARTICLE V
5.1. CAPITAL STOCK.
(a) CLASSES. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is 66,100,000, of
which (a) 60,000,000 shares shall be common stock, $.01 par value per share
("COMMON STOCK"), (b) 6,000,000 shares shall be preferred stock, $.01 par value
per share ("PREFERRED STOCK"), and (c) 100,000 shares shall be Class A
Convertible Preferred Stock, $1,000 par value per share ("CLASS A PREFERRED");
provided, that all of the outstanding shares of Class A Preferred shall be
redeemed for cash or converted into shares of Common Stock in accordance with
the provisions of Article VI hereof on or prior to the closing date (the
"CLOSING DATE") of the Corporation's Initial Public Offering (as hereinafter
defined); and, provided, further, that following the Closing Date, the
Corporation shall not issue any shares of Class A Preferred.
(b) NO PREEMPTIVE RIGHTS. No shareholder of the Corporation
shall have any preemptive rights to purchase, subscribe for or otherwise acquire
any capital stock or other securities of the Corporation, whether now or
hereafter authorized, and any and all preemptive rights hereby are denied.
(c) COMBINATION OF ISSUED AND OUTSTANDING SHARES OF COMMON
STOCK. Effective as of the date this Restated Certificate of Incorporation is
filed with the Department of State of the State of New York, the Corporation
shall effect a combination of the issued and
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<PAGE> 3
outstanding shares of Common Stock whereby the number of shares of Common
Stock held by each holder thereof shall be adjusted by multiplying such
number by a factor, the numerator of which is 12.2 and the denominator of which
is 13.3; provided, that the number of authorized shares of Common Stock of the
Corporation shall not be affected by such adjustment to the number of shares of
issued and outstanding Common Stock, and the number of shares of Common Stock
which the Corporation shall have authority to issue shall remain as 60,000,000;
and, provided, further, that the par value of the Common Stock shall remain as
$.01 per share, and the stated capital of the Corporation shall be adjusted to
reflect the combination of the issued and outstanding shares of Common Stock as
provided in this Section 5.1(c) based on a par value of $.01 per share of Common
Stock.
5.2. COMMON STOCK. The powers, designations, preferences and relative
participating, optional or other special rights and the qualifications,
limitations and restrictions of the Common Stock are as follows:
(a) DIVIDENDS. Subject to the rights of the holders of
Preferred Stock and Class A Preferred, the holders of the Common Stock shall be
entitled to receive when, as, and if declared by the Board of Directors of the
Corporation (the "BOARD"), out of funds legally available therefor, dividends
payable in cash, stock or otherwise.
(b) DISTRIBUTIONS UPON LIQUIDATION. In the event of a
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and after the holders of Preferred Stock and Class A Preferred
shall have received the full preferential amounts (if any) to which such holders
are entitled, the holders of Common Stock shall be entitled to share in the
distribution of any remaining assets available for distribution to the holders
of Common Stock.
(c) VOTING RIGHTS. Subject to the voting rights granted to the
holders of Preferred Stock and Class A Preferred, the holders of Common Stock
shall be entitled to one (1) vote per share in voting or consenting on the
election of directors and for all other corporate purposes.
5.3. PREFERRED STOCK. The Corporation shall have the authority to issue
shares of Preferred Stock. The Board hereby is authorized, without further
shareholder approval, to issue shares of Preferred Stock in one or more series
and to fix the rights, preferences, privileges and restrictions thereof,
including dividend rights, voting rights, terms of redemption and liquidation
preferences, and to fix the number of shares constituting any series and the
designations of such series.
ARTICLE VI
6.1. CLASS A PREFERRED STOCK; NUMBER AUTHORIZED. The Corporation shall
have authority to issue 100,000 shares of Class A Preferred, which shares shall
have the powers, designations, rights and preferences set forth in this Article
VI; provided, that following the Closing Date, the Corporation shall not issue
any shares of Class A Preferred.
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6.2. DIVIDENDS.
(a) GENERAL OBLIGATION. When and as declared by the Board and
to the extent permitted under the NYBCL, the Corporation shall pay cumulative
dividends to the holders of the Class A Preferred as provided in this Section
6.2. Dividends on each share of the Class A Preferred (a "SHARE") shall be paid
in additional Shares (valued at the Liquidation Value (as hereinafter defined)
thereof) and shall accrue on a daily basis at the rate of 15% per annum of the
sum of the Liquidation Value thereof plus all accumulated and unpaid dividends
thereon from and including the date of issuance of such Share to and including
the first to occur of (i) the date on which the Liquidation Value of such Share
(plus all accrued and unpaid dividends thereon) is paid to the holder thereof in
connection with the liquidation of the Corporation or the redemption of such
Share by the Corporation or (ii) the date on which such Share otherwise is
acquired by the Corporation. Such dividends shall accrue whether or not they
have been declared and whether or not there are profits, surplus or other funds
of the Corporation legally available for the payment of dividends, and such
dividends shall be cumulative such that all accrued and unpaid dividends shall
be fully paid or declared with funds irrevocably set apart for payment before
any dividends, distributions, redemptions or other payments may be made with
respect to any Junior Securities (as hereinafter defined). The date on which the
Corporation initially issues any Share shall be deemed to be its "date of
issuance" regardless of the number of times transfer of such Share is made on
the stock records maintained by or for the Corporation and regardless of the
number of certificates which may be issued to evidence such Share.
(b) DIVIDEND REFERENCE DATES. Dividends shall be paid on March
31, June 30, September 30 and December 31 of each year, beginning December 31,
1998 (the "DIVIDEND REFERENCE DATES"), and additional Shares issuable in respect
of all dividends which have accrued on each Share outstanding during the three
(3)-month period (or other period in the case of the initial Dividend Reference
Date) ending upon each such Dividend Reference Date shall be deemed issued with
respect to each such Share to the holder thereof, regardless of whether the
Corporation has issued a certificate or certificates in respect of such
additional Shares and without any further action on the part of the Corporation
or the holders of the Shares.
6.3. LIQUIDATION. Upon any liquidation, dissolution or winding up of
the Corporation (whether voluntary or involuntary), each holder of Shares shall
be entitled to be paid, before any distribution or payment is made upon any
Junior Securities, an amount in cash equal to the aggregate Liquidation Value of
all Shares held by such holder (plus all accrued and unpaid dividends thereon),
and the holders of Shares shall not be entitled to any further payment. If, upon
any such liquidation, dissolution or winding up of the Corporation, the
Corporation's assets to be distributed among the holders of Shares are
insufficient to permit payment to such holders of the aggregate amount which
they are entitled to be paid under this Section 6.3, then the entire assets
available to be distributed to the Corporation's shareholders shall be
distributed pro rata among such holders based upon the aggregate Liquidation
Value (plus all accrued and unpaid dividends) of Shares held by each such
holder. Not less than thirty (30) days prior to the payment date stated therein,
the Corporation shall
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mail written notice of any such liquidation, dissolution or winding up to each
record holder of Shares, setting forth in reasonable detail the amount of
proceeds to be paid with respect to each Share and each share of Common Stock
in connection with such liquidation, dissolution or winding up.
6.4. PRIORITY OF CLASS A PREFERRED ON DIVIDENDS AND REDEMPTIONS. As
long as any Shares remain outstanding, without the prior written consent of the
holders of a majority of the outstanding Shares, the Corporation shall not, nor
shall it permit any Subsidiary (as hereinafter defined) to, redeem, purchase or
otherwise acquire directly or indirectly any Junior Securities, nor shall the
Corporation directly or indirectly pay or declare any dividend or make any
distribution upon any Junior Securities; provided that the Corporation may
repurchase shares of Common Stock or Shares, or both, from present or former
employees of the Corporation and its Subsidiaries in accordance with the
provisions of the Senior Management Agreements (as hereinafter defined).
6.5. REDEMPTIONS. Subject to any limitations or prohibitions set forth
in the Financing Documents (as hereinafter defined) then outstanding:
(a) SCHEDULED REDEMPTIONS. The Corporation shall redeem all of
the outstanding Shares on December 31, 2003 (the "SCHEDULED REDEMPTION DATE"),
at a price per Share equal to the Liquidation Value thereof, plus all accrued
and unpaid dividends thereon.
(b) OPTIONAL REDEMPTIONS. To the extent permitted under the
NYBCL, the Corporation may at any time and from time to time redeem all or any
portion of the Shares then outstanding. Upon any such redemption, the
Corporation shall pay a price per Share equal to the Liquidation Value thereof,
plus all accrued and unpaid dividends thereon.
(c) REDEMPTION IN CONNECTION WITH PUBLIC OFFERING. The
Corporation shall, at the request of the holders of a majority of the Shares by
written notice (the "REDEMPTION NOTICE") given to the Corporation no more than
ninety (90) nor less than fifteen (15) days prior to the Closing Date apply up
to fifty percent (50%) of the net cash proceeds from an Initial Public Offering
remaining after deduction of all discounts, underwriters' commissions and other
reasonable expenses to redeem Shares at a price per Share equal to the
Liquidation Value thereof, plus all accrued and unpaid dividends thereon. In the
event that Thayer Equity Investors III, L.P. ("THAYER"), as the holder of a
majority of the Shares, executes a Redemption Notice, the Corporation promptly
shall provide notice of its receipt of the Redemption Notice to each other
holder of Shares, and each such other holder of Shares shall have five (5) days
after receipt thereof to give notice to the Corporation of such shareholder's
intent to have a portion of such shareholder's Shares redeemed by the
Corporation, which portion shall be determined by multiplying the total number
of Shares then held by such shareholder times a fraction, the numerator of which
shall be the number of Shares held by Thayer to be redeemed pursuant to the
Redemption Notice and the denominator of which shall be the total number of
Shares then held by Thayer. Effective as of the Closing Date at a time
immediately prior to the closing of the Initial Public Offering, the Corporation
shall redeem (i) the number of Shares held by Thayer as set forth in such
Redemption Notice
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and (ii) a proportionate number (as determined in accordance with the
immediately preceding sentence of this Section 6.5(c)) of Shares held by each
other holder of Shares who provides notice to the Corporation of such
shareholder's intent to have a portion of such shareholder's Shares so redeemed;
provided, however, that the total number of Shares to be redeemed in connection
with an Initial Public Offering pursuant to this Section 6.5(c) shall not exceed
the number of Shares having an aggregate Liquidation Value, after giving effect
to all accrued and unpaid dividends then owed on such Shares, equal to fifty
percent (50%) of the net cash proceeds from such Initial Public Offering
remaining after deduction of all discounts, underwriters' commissions and other
reasonable expenses. Also effective as of the Closing Date, (i) if so elected by
the holders of a majority of all outstanding Shares (other than Shares to be
redeemed pursuant to this Section 6.5(c)) pursuant to Section 6.7 below, each
outstanding Share (other than Shares to be redeemed pursuant to this Section
6.5(c)) shall be converted into shares of Common Stock at a time immediately
prior to the closing of the Initial Public Offering as provided in Section 6.7
and (ii) no Share shall accrue any dividends after the Closing Date. Redemptions
of Shares pursuant to this Section 6.5(c) shall not relieve the Corporation of
its obligation to redeem Shares on the Scheduled Redemption Date.
(d) REDEMPTION PAYMENTS. For each Share which is to be
redeemed hereunder, the Corporation shall be obligated on the Redemption Date
(as hereinafter defined) to pay to the holder thereof (upon surrender by such
holder at the Corporation's principal office of the certificate representing
such Share) an amount in immediately available funds equal to the Liquidation
Value of such Share, plus all accrued and unpaid dividends thereon. If the funds
of the Corporation legally available for redemption of Shares on any Redemption
Date are insufficient to redeem the total number of Shares to be redeemed on
such date, those funds which are legally available shall be used to redeem the
maximum possible number of Shares pro rata among the holders of the Shares to be
redeemed based upon the aggregate Liquidation Value of such Shares held by each
such holder, plus all accrued and unpaid dividends thereon. At any time
thereafter when additional funds of the Corporation are legally available for
the redemption of Shares, such funds immediately shall be used to redeem the
balance of the Shares which the Corporation has become obligated to redeem on
any Redemption Date but which it has not redeemed.
(e) NOTICE OF REDEMPTION. Except as otherwise provided herein,
the Corporation shall mail written notice of each redemption of any Shares to
each record holder thereof not more than sixty (60) nor less than five (5) days
prior to the date on which such redemption is to be made. In case fewer than the
total number of Shares represented by any certificate are redeemed, a new
certificate representing the number of unredeemed Shares shall be issued to the
holder thereof without cost to such holder within five (5) business days after
surrender of the certificate representing the redeemed Shares.
(f) DETERMINATION OF THE NUMBER OF EACH HOLDER'S SHARES TO BE
REDEEMED. Except for redemptions effected in connection with an Initial Public
Offering as provided in Section 6.5(c) hereof, the number of Shares to be
redeemed from each holder thereof in redemptions hereunder shall be the number
of Shares determined by multiplying the total number of Shares to be redeemed
times a fraction, the numerator of which shall be the
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total number of Shares then held by such holder and the denominator of which
shall be the total number of Shares then outstanding.
(g) DIVIDENDS AFTER REDEMPTION. With respect to any Share to
be redeemed in connection with an Initial Public Offering as provided in Section
6.5(c) hereof, (i) no such Share shall be entitled to any dividends accruing
after the Closing Date and (ii) all rights of the holder of such Share shall
cease, and such Share no longer shall be deemed to be issued and outstanding, as
of the Closing Date. With respect to any other Share redeemed hereunder, (i) no
such Share shall accrue any dividends after the date on which the Liquidation
Value of such Share (plus all accrued and unpaid dividends thereon) is paid to
the holder of such Share and (ii) all rights of the holder of such Share shall
cease, and such Share no longer shall be deemed to be issued and outstanding, as
of such date.
(h) REDEEMED OR OTHERWISE ACQUIRED SHARES. Any Shares which
are redeemed or otherwise acquired by the Corporation shall be canceled and
retired to authorized but unissued shares and shall not be reissued, sold or
transferred.
(i) REDEMPTIONS OR ACQUISITIONS. The Corporation shall not,
nor shall it permit any Subsidiary to, redeem or otherwise acquire any Shares,
except as expressly authorized herein.
(j) PAYMENT OF ACCRUED DIVIDENDS. The Corporation may not
redeem any Shares, unless all dividends accrued on the outstanding Shares
through the immediately preceding Dividend Reference Date have been declared and
paid in full.
(k) SPECIAL REDEMPTIONS.
(i) If a Change in Ownership (as hereinafter defined)
has occurred or the Corporation obtains knowledge that a Change in Ownership is
proposed to occur, the Corporation shall give prompt written notice of such
Change in Ownership describing in reasonable detail the material terms and date
of consummation thereof to each holder of Shares; provided, that (a) in any
event such notice shall not be given later than five (5) days after the
occurrence of such Change in Ownership and (b) the Corporation shall give each
holder of Shares prompt written notice of any material change in the terms or
timing of such transaction. The holder or holders of a majority of the Shares
then outstanding may require the Corporation to redeem all or any portion of the
Shares owned by such holders at a price per Share equal to the Liquidation Value
thereof, plus all accrued and unpaid dividends thereon, by giving written notice
to the Corporation of such election prior to the later of (i) fifteen (15) days
after receipt of the Corporation's notice and (ii) five (5) days prior to the
consummation of the Change in Ownership (the "EXPIRATION DATE"). The Corporation
shall give prompt written notice of any such election to all other holders of
Shares within five (5) days after the receipt thereof, and each such holder
shall have until the later of (A) the Expiration Date or (B) ten (10) days after
receipt of such second notice to request redemption hereunder (by giving written
notice to the Corporation) of the same portion of the Shares owned by such
holder as that proposed to be redeemed by the holders of a majority of the
Shares requesting such redemption.
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Upon receipt of such election(s), the Corporation shall be
obligated to redeem the aggregate number of Shares specified therein on the
later of (a) the occurrence of the Change in Ownership or (b) five (5) days
after the Corporation's receipt of all of such election(s). If any proposed
Change in Ownership does not occur, all requests for redemption in connection
therewith automatically shall be rescinded, or if there has been a material
change in the terms or the timing of the transaction, any holder of Shares may
rescind such holder's request for redemption by delivering written notice
thereof to the Corporation prior to the consummation of the transaction.
The term "CHANGE IN OWNERSHIP" means any sale, transfer or
issuance or series of sales, transfers or issuances of shares of Common Stock,
or any combination of any of the foregoing, by the Corporation or any holders
thereof which results in any Person (as hereinafter defined) or group of Persons
(as the term "group" is used under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")), other than Thayer and its Affiliates (as the term
"AFFILIATE" is defined in the Exchange Act), owning more than fifty percent
(50%) of the Common Stock outstanding immediately following the time of such
sale, transfer or issuance or series of sales, transfers or issuances, or any
combination of any of the foregoing; provided, however, that in no event shall
the consummation of an Initial Public Offering constitute a Change in Ownership.
(ii) If a Fundamental Change (as hereinafter defined)
is proposed to occur, the Corporation shall give written notice of such
Fundamental Change describing in reasonable detail the material terms and date
of consummation thereof to each holder of Shares not more than forty-five (45)
days nor less than fifteen (15) days prior to the consummation of such
Fundamental Change, and the Corporation shall give each holder of Shares prompt
written notice of any material change in the terms or timing of such
transaction. The holder or holders of a majority of the Shares then outstanding
may require the Corporation to redeem all or any portion of the Shares owned by
such holders at a price per Share equal to the Liquidation Value thereof, plus
all accrued and unpaid dividends thereon, by giving written notice to the
Corporation of such election prior to the later of (a) ten (10) days prior to
the consummation of the Fundamental Change or (b) ten (10) days after receipt of
notice from the Corporation. The Corporation shall give prompt written notice of
such election to all other holders of Shares (but in any event on or before the
fifth (5th) day prior to the consummation of the Fundamental Change), and each
such holder shall have until two (2) days after the receipt of such notice to
request redemption (by written notice given to the Corporation) of the same
portion of the Shares owned by such holder as that proposed to be redeemed by
the holders of a majority of the Shares requesting such redemption.
Upon receipt of such election(s), the Corporation shall be
obligated to redeem the aggregate number of Shares specified therein upon the
consummation of such Fundamental Change. If any proposed Fundamental Change does
not occur, all requests for redemption in connection therewith shall be
automatically rescinded, or if there has been a material change in the terms or
the timing of the transaction, any holder of Shares may rescind such holder's
request for redemption by delivering written notice thereof to the Corporation
prior to the consummation of the transaction.
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The term "FUNDAMENTAL CHANGE" means (a) any sale or transfer
of more than fifty percent (50%) of the assets of the Corporation and its
Subsidiaries on a consolidated basis (measured either by book value in
accordance with generally accepted accounting principles consistently applied or
by fair market value determined in the reasonable good faith judgment of the
Board) in any transaction or series of transactions (other than sales in the
ordinary course of business) and (b) any merger or consolidation to which the
Corporation is a party, except for a merger in which the Corporation is the
surviving corporation or the surviving corporation was previously a wholly owned
subsidiary of the Corporation and (i) the terms of the Class A Preferred are not
changed or all outstanding Shares are exchanged for either cash or substantially
identical securities or other property, and (ii) after giving effect to such
merger or consolidation, the holders of the Corporation's outstanding capital
stock possessing a majority of the voting power (under ordinary circumstances)
to elect a majority of the Board immediately prior to the merger or
consolidation shall continue after the merger or consolidation to own the
surviving corporation's outstanding capital stock possessing the voting power
(under ordinary circumstances) to elect a majority of such surviving
corporation's board of directors.
(iii) Redemptions made pursuant to this Section
6.5(k) shall not relieve the Corporation of its obligation to redeem Shares on
the Scheduled Redemption Date pursuant to Section 6.5(a) above.
6.6. VOTING RIGHTS.
(a) Except as otherwise provided herein and as otherwise
required by applicable law, the Class A Preferred shall have no voting rights;
provided, that each holder of Shares shall be entitled to notice of all
shareholders meetings at the same time and in the same manner as notice is given
to all shareholders entitled to vote at such meetings.
(b) The Corporation shall not, without the consent of the
holders of seventy-five (75%) percent of the outstanding Shares voting as a
single class: (i) issue any class or series of equity security ranking senior to
or in parity with the Class A Preferred as to payment of dividends or any
payment on any liquidation of the Corporation or (ii) amend the Certificate of
Incorporation or By-laws of the Corporation (the "BY-LAWS") in any manner which
would impair or reduce the rights of the Class A Preferred or enter into any
agreement that would restrict the Corporation's right to perform under the
Shareholders' Agreement (as hereinafter defined) or the Senior Management
Agreements.
6.7. CONVERSION.
(a) In the event the Corporation effects an Initial Public
Offering, the holders of a majority of all outstanding Shares shall have the
right, on or prior to the Closing Date, to elect to cause the conversion of each
outstanding Share not theretofore redeemed or subject to an election for
redemption pursuant to Section 6.5 into the number of shares of fully paid and
nonassessable Common Stock obtained by dividing (x) the then applicable
Liquidation Value (plus all accrued but unpaid dividends thereon) by (y) the
price per share to the public
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of the Common Stock sold by the Corporation in the Initial Public Offering as
set forth in the final prospectus relating thereto.
(b) The Corporation shall provide the holders of Shares with
written notice of the Initial Public Offering at least fifteen (15) days prior
to the Closing Date. Such notice shall specify the estimated initial public
offering price of the Common Stock.
(c) The conversion of all Shares into shares of Common Stock
shall be effected by the surrender of the certificate or certificates evidencing
the Share or Shares to be converted (the "CONVERTING SHARES"), duly assigned to
the Corporation or endorsed in blank, at the principal office of the corporation
(or such other office or agency of the Corporation as the Corporation may
designate by written notice to the holders of Shares) at any time during its
usual business hours. Promptly after such surrender and the receipt of such
written notice, the Corporation shall issue and deliver a certificate or
certificates evidencing the shares of Common Stock issuable upon such conversion
(the "CONVERTED SHARES"). Such conversion, to the extent permitted by law, shall
be deemed to have been effected as of the Closing Date at a time immediately
prior to the closing of the Initial Public Offering, and at such time the rights
of the holders of all Converting Shares as such holders shall cease, and the
person or persons in whose name or names the certificate or certificates
evidencing the Converted Shares are to be issued upon such conversion shall be
deemed to have become the holder or holders of record of the Converted Shares.
Upon issuance of Converted Shares in accordance with this Section 6.7(c), such
Converted Shares shall be deemed to be duly authorized, validly issued, fully
paid and nonassessable.
(d) The Corporation shall take all such corporate and other
actions as from time to time may be necessary to insure that there is an
adequate number of shares of Common Stock authorized but unissued or held as
treasury shares to allow the conversion of all outstanding Shares.
No fractional Converted Shares shall be issued by the
Corporation. In lieu thereof, the Corporation shall pay each holder of a
fractional Converted Share an amount in cash equal to the product of (x) the
applicable fraction of the fractional Converted Share and (y) the price per
share to the public of the Common Stock sold by the Corporation in the Initial
Public Offering as set forth in the final prospectus relating thereto.
6.8. REGISTRATION OF TRANSFER. The Corporation shall keep at its
principal office a register for the registration of Shares. Upon the surrender
of any certificate representing Shares at such place, the Corporation shall, at
the request of the record holder of such certificate, execute and deliver (at
the Corporation's expense) a new certificate or certificates in exchange
therefor representing, in the aggregate, the number of Shares represented by the
surrendered certificate. Each such new certificate shall be registered in such
name and shall represent such number of Shares as is requested by the holder of
the surrendered certificate and shall be substantially identical in form to the
surrendered certificate, and dividends shall accrue on the Shares represented by
such new certificate from the date to which dividends have been fully paid on
such Shares represented by the surrendered certificate.
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6.9. REPLACEMENT. Upon receipt of evidence reasonably satisfactory to
the Corporation (an affidavit of the registered holder shall be satisfactory) of
the ownership and the loss, theft, destruction or mutilation of any certificate
evidencing Shares, and in the case of any such loss, theft or destruction, upon
receipt of indemnity reasonably satisfactory to the Corporation, or, in the case
of any such mutilation upon surrender of such certificate, the Corporation shall
(at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of Shares represented by such
lost, stolen, destroyed or mutilated certificate and dated the date of such
lost, stolen, destroyed or mutilated certificate, and dividends shall accrue on
the Shares represented by such new certificate from the date to which dividends
have been fully paid on such lost, stolen, destroyed or mutilated certificate.
6.10. DEFINITIONS,
(a) "CHANGE IN OWNERSHIP" has the meaning set forth in Section
6.5(k) hereof.
(b) "FINANCIAL INSTITUTIONS" means, at any date, the financial
institutions party to the Financing Documents on such date.
(c) "FINANCING" means the Financing as defined in the
Recapitalization Agreement.
(d) "FINANCING DOCUMENTS" means all agreements, instruments
and other documents executed or delivered in connection with the Financing, in
each case as amended, supplemented or otherwise modified from time to time,
including all substitutions therefor and replacements thereof.
(e) "FUNDAMENTAL CHANGE" has the meaning set forth in Section
6.5(k) hereof.
(f) "INITIAL PUBLIC OFFERING" means the first offering by the
Corporation of its capital stock or equity securities to the public pursuant to
an effective registration statement under the Securities Act of 1933, as then in
effect, or any comparable statement under any similar federal statute then in
force, with net proceeds to the Corporation of at least $15,000,000.
(g) "JUNIOR SECURITIES" means any capital stock or other
equity securities of the Corporation, except for the Class A Preferred.
(h) "LIQUIDATION VALUE" of any Share as of any particular date
shall be equal to $1,000.00.
(i) "PAYOFF DATE" any date upon which (i) all of the
liabilities and obligations of the Financial Institutions under the Financing
Documents shall have expired, been satisfied or otherwise terminated, and (ii)
the Financial Institutions shall have received
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the indefeasible payment in full, in cash, of the then outstanding obligations
and liabilities of the Corporation and its Subsidiaries under the Financing
Documents, in each case whether fixed, contingent, now existing or hereafter
arising, created, assumed, incurred or acquired.
(j) "PERSON" means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization or a governmental
entity or any department, agency or political subdivision thereof.
(k) "RECAPITALIZATION AGREEMENT" means the Recapitalization
Agreement, dated as of March 18, 1998, by and among the Corporation and certain
investors, as such agreement may from time to time be amended in accordance with
its terms.
(l) "REDEMPTION DATE" as to any Share means the date specified
in the notice of any redemption at the Corporation's option or at the holder's
option or the applicable date specified herein in the case of any other
redemption; provided that no such date shall be a Redemption Date unless the
Liquidation Value of such Share (plus all accrued and unpaid dividends thereon)
is actually paid in full on such date, and if not so paid in full, the
Redemption Date shall be the date on which such amount is fully paid; provided,
however, that with respect to redemptions effected in connection with an Initial
Public Offering as provided in Section 6.5(c) hereof, the Redemption Date shall
be the date fixed by the Corporation, which date shall be not more than five (5)
days after the Corporation's receipt of the proceeds of the Initial Public
Offering.
(m) "SENIOR MANAGEMENT AGREEMENTS" means the Senior Management
Agreements entered into with certain senior executives of the Corporation
pursuant to which such executives will purchase shares of the Corporation's
Common Stock on a restricted basis.
(n) "SHAREHOLDERS' AGREEMENT" means the Shareholders'
Agreement as defined in the Recapitalization Agreement.
(o) "SUBSIDIARY" means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person or a combination thereof,
or (ii) if a limited liability company, partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more Subsidiaries of such Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or shall
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control the managing general partner of such limited liability company,
partnership, association or other business entity.
6.11. AMENDMENT AND WAIVER. No amendment, modification or waiver shall
be binding or effective with respect to any provision of this Article VI without
the prior written consent of the holders of a sixty-six percent (66%) of the
Shares outstanding at the time such action is taken; provided, that no such
action shall change (i) the rate at which or the manner in which dividends on
the Shares accrue or the times at which such dividends become payable or the
amount payable on redemption of the Shares or the times at which redemption of
Shares is to occur or (ii) the percentage required to approve any change
described in clause (i) above, without the prior written consent of the holders
of at least eighty (80%) percent of the Shares then outstanding; and provided,
further, that no change in the terms of this Article VI may be accomplished by
merger or consolidation of the Corporation with another corporation or entity
unless the Corporation has obtained the prior written consent of the holders of
the applicable percentage of the Shares then outstanding which would be required
to approve such change without such merger or consolidation. Notwithstanding
anything to the contrary contained herein, no amendment, supplement,
modification or waiver shall be binding with respect to any provision of Section
6.13 hereof or any provision of this sentence, in each case without the prior
written consent of the agent for the Financial Institutions under the Financial
Documents.
6.12. NOTICES. Except as otherwise expressly provided hereunder, all
notices referred to herein shall be in writing, and shall be deemed to have been
given when delivered personally or sent by facsimile or seventy-two (72) hours
after deposited in the United States mail, first class, postage prepaid, or
twenty-four (24) hours after being sent by reputable overnight courier service,
charges prepaid, and shall be deemed to have been given when so mailed or sent
(i) to the Corporation, at its principal executive offices and (ii) to any
shareholder, at such holder's address as it appears in the stock records of the
Corporation (unless otherwise indicated by any such holder).
6.13. FINANCING. Notwithstanding anything to the contrary contained in
this Certificate of Incorporation, at any time prior to the Payoff Date, no
holder of Shares shall have any right to receive, demand or cause to become due
or payable any payment, other than in Shares as provided in Section 6.2(a), in
respect of such Shares to the extent that such payment, other than in Shares as
provided in Section 6.2(a), would not be permitted under the Financing Documents
at such time.
ARTICLE VII
7.1. POWER OF BOARD AND QUALIFICATION OF DIRECTORS. The business of the
Corporation shall be managed by the Board. Each director shall be at least 18
years of age.
7.2. NUMBER OF DIRECTORS. The number of directors of the Corporation
shall be not less than three (3) nor more than fifteen (15), and shall be fixed
from time to time by the
-13-
<PAGE> 14
affirmative vote of more than two-thirds (2/3) of the total number of directors
which the Corporation would have, prior to any increase or decrease, if there
were no vacancies.
7.3. CLASSES, ELECTION AND TERM. The Board shall be divided into three
(3) classes, with each class to be as nearly equal in number as reasonably
possible, and with the initial term of office of the first class of directors to
expire at the first annual meeting of shareholders held after an Initial Public
Offering, the initial term of office of the second class of directors to expire
at the second annual meeting of shareholders held after an Initial Public
Offering, and the initial term of office of the third class of directors to
expire at the third annual meeting of shareholders held after an Initial Public
Offering. Commencing with the first annual meeting of shareholders held after an
Initial Public Offering, directors elected to succeed those directors whose
terms have expired at an annual meeting shall be elected for a term of office to
expire at the third succeeding annual meeting of shareholders after their
election, and upon the election and qualification of their successors. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain or attain the number of directors in each
class as nearly equal as reasonably possible, but in no case shall a decrease in
the number of directors shorten the term of any incumbent director. This Section
7.3 shall become effective upon the consummation of an Initial Public Offering.
Prior to an Initial Public Offering, however, the Board by resolution shall
establish and determine the classes into which the directors in office
immediately following an Initial Public Offering shall be divided.
7.4. RESIGNATIONS. Any director of the Corporation may resign at any
time by giving written notice to the Board or to the Chairman of the Board or to
the Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein the acceptance of such
resignation shall not be necessary to make it effective.
7.5. REMOVAL OF DIRECTORS. Except as may be provided in a resolution
which provides for any class of Preferred Stock pursuant to Article V hereof and
which relates to such class of Preferred Stock, (i) any one or more directors
may be removed only for cause by the affirmative vote of a majority of the
directors then in office and (ii) any or all of the directors may be removed
only for cause by the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the combined voting power of all of the shares
of all classes of capital stock of the Corporation then entitled to vote
generally in the election of directors.
7.6. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as may be
provided in a resolution which provides for any class of Preferred Stock
pursuant to Article V hereof and which relates to such class of Preferred Stock,
newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the Board for any reason may be filled only
by vote of a majority of the directors then in office, even if less than a
quorum exists. A director elected by the Board to fill a vacancy shall be
elected to hold office until the next annual meeting of shareholders and until
such director's successor has been elected and qualified.
-14-
<PAGE> 15
ARTICLE VIII
The Board shall have the power to adopt, amend, alter, change
or repeal the By-laws. In addition to any requirements of the NYBCL (and
notwithstanding the fact that a lesser percentage may be specified by the
NYBCL), any adoption, amendment, alteration, change or repeal of any By-laws by
the shareholders of the Corporation after an Initial Public Offering shall
require the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the combined voting power of all of the shares of all
classes of capital stock of the Corporation then entitled to vote generally in
the election of directors.
ARTICLE IX
9.1. SPECIAL MEETING OF SHAREHOLDERS. Special meetings of shareholders
may only be called by the Board, the Chairman of the Board or the Chief
Executive Officer. At such meetings, the only business which may be transacted
is that relating to the purpose or purposes set forth in the notice thereof.
9.2. ACTION BY WRITTEN CONSENT OF SHAREHOLDERS PRIOR TO THE CLOSING
DATE. Prior to the Closing Date, any action required or permitted to be taken by
the shareholders of the Corporation may be effected by a written consent signed
by the holders of not less than the number of shares which would be required to
approve such action at a meeting of shareholders at which all shares of capital
stock of the Corporation were present in person or by proxy and voted on such
proposed action.
9.3. NO ACTION BY WRITTEN CONSENT OF SHAREHOLDERS AFTER THE CLOSING
DATE. From and after the Closing Date, except as may be provided in a resolution
of the Board which provides for any class or series of Preferred Stock pursuant
to Article V hereof and which relates to such class of Preferred Stock, any
action required or permitted to be taken by the shareholders of the Corporation
must be effected at a duly called annual or special meeting of such shareholders
as provided in the By-laws and may not be effected by any consent in writing by
any such shareholders.
ARTICLE X
A director of the Corporation shall, to the maximum extent
permitted by the NYBCL, have no personal liability to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director. If
the NYBCL hereafter is amended to eliminate or further limit the liability of a
director, then a director of the Corporation, in addition to the circumstances
in which a director is not personally liable as set forth in the preceding
sentence, shall have no such liability to the fullest extent permitted by the
amended NYBCL. Any repeal or modification of this Article X by the shareholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
-15-
<PAGE> 16
ARTICLE XI
The Corporation shall have authority, to the fullest extent
now or hereafter permitted by the NYBCL, or by any other applicable law, and to
the extent and in the manner provided in the By-laws, to enter into any contract
or transaction with one or more of its directors or officers, or with any
corporation, partnership, joint venture, trust, association, or other entity in
which one or more of its directors or officers are directors or officers, or
have a financial interest, notwithstanding such relationships and
notwithstanding the fact that the director or officer is present at or
participates in the meeting of the Board or committee thereof which authorizes
the contract or transaction.
ARTICLE XII
12.1. GENERAL RIGHT TO AMEND CERTIFICATE OF INCORPORATION. The
Corporation hereby reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, and all rights
conferred upon shareholders are granted subject to this reservation. Except as
may be provided in a resolution which provides for any class of Preferred Stock
pursuant to Article V hereof and which relates to such class of Preferred Stock
and except as provided in Article VI hereof, any such amendment, alteration,
change or repeal shall require the affirmative vote of both (a) a majority of
the members of the Board then in office and (b) a majority of the combined
voting power of all of the shares of all classes of capital stock of the
Corporation then entitled to vote generally in the election of directors.
12.2. ABANDONMENT OF PROPOSED AMENDMENT. By a vote of the majority of
the members of the Board then in office, the Board may adopt a resolution
providing that at any time prior to the filing of any such amendment with the
Secretary of State, notwithstanding authorization of the proposed amendment by
the shareholders, the Board may abandon such proposed amendment without further
action by the shareholders.
12.3. AMENDMENT OF CERTAIN PROVISIONS. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of
the combined voting power of all of the shares of all classes of capital stock
of the Corporation then entitled to vote generally in the election of directors
shall be required to amend, repeal or adopt any provision inconsistent with
Section 7.3, Section 7.5, Section 7.6, Article VIII or Article IX hereof or this
Section 12.3. This Section 12.3 shall become effective only upon consummation of
an Initial Public Offering.
ARTICLE XIII
The duration of the Corporation is to be perpetual.
-16-
<PAGE> 17
* * * *
5. This Certificate of Incorporation has been approved by the
unanimous written consent of the Board and by the written consent of the holders
of the requisite number of the outstanding shares of the Corporation's capital
stock.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-17-
<PAGE> 18
IN WITNESS WHEREOF, the undersigned have executed this Restated
Certificate of Incorporation as of this 13th day of July, 1998 and we affirm the
statements contained herein are true under the penalties of perjury.
/s/ Daniel A. Raskas
----------------------------------------------
Daniel A. Raskas, Vice President and Secretary
/s/ Christopher Temple
----------------------------------------------
Christopher Temple, Assistant Secretary
-18-
<PAGE> 1
EXHIBIT 3.3
FORM OF RESTATED
CERTIFICATE OF INCORPORATION
OF
GLOBAL VACATION GROUP, INC.
UNDER SECTION 807 OF THE
BUSINESS CORPORATION LAW
The undersigned, being, respectively the President and the
Secretary of Global Vacation Group, Inc. (the "CORPORATION"), do hereby certify
as follows:
1. The name of the Corporation is Global Vacation Group, Inc. The
name under which the corporation originally was formed is Allied Bus Corp.
2. The Certificate of Incorporation originally was filed with the
Department of State of New York on July 17, 1959.
3. The Restated Certificate of Incorporation of the Corporation
as now in full force and effect hereby is amended to effect the following
changes as authorized by Section 801 of the New York Business Corporation Law
(the "NYBCL"):
(a) To remove from the authorized capital stock of the
Corporation the class of stock designated as Class A Convertible Preferred
Stock, $1,000 par value per share (the "CLASS A PREFERRED");
(b) To delete Section 5.1(c) from the Corporation's Restated
Certificate of Incorporation, which Section 5.1(c) related to the combination of
shares of the Corporation's common stock, $.01 par value per share, which was
consummated prior to the date of this Restated Certificate of Incorporation;
(c) To delete Article VI from the Corporation's Restated
Certificate of Incorporation, which Article VI related to the rights and
privileges of the Class A Preferred, and to delete all other references to the
Class A Preferred from the Corporation's Restated Certificate of Incorporation;
(d) To delete references to the Corporation's initial public
offering and other events related to such offering, all of which were
consummated prior to the date of this Restated Certificate of Incorporation;
(e) To amend Section 7.3 of the Corporation's Restated
Certificate of Incorporation to identify the directors of the Corporation and
the classes into which such directors shall be divided;
(f) To delete Section 9.2 from the Corporation's Restated
Certificate of Incorporation, which Section 9.2 related to the right of the
Corporation's shareholders to take
<PAGE> 2
action by written consent prior to the completion of the Corporation's initial
public offering; and
(g) To make certain clarifying amendments to Section 12.1 and
Section 12.3.
4. To effect the foregoing amendments, the Restated Certificate
of Incorporation of the Corporation hereby is amended and restated in its
entirety to read as follows:
ARTICLE I
The name of the Corporation is Global Vacation Group, Inc.
ARTICLE II
The office of the Corporation in the State of New York is located
in the County of New York.
ARTICLE III
The Secretary of State is designated as agent of the Corporation
upon whom process against it may be served. The address to which the Secretary
of State shall mail a copy of any process against the Corporation served upon
him or her is 1420 New York Avenue, N.W., Suite 550, Washington, D.C. 20005.
The name and address of the registered agent of the corporation
upon whom process against the corporation may be served is CT Corporation
System, 1633 Broadway, New York, NY 10019.
ARTICLE IV
The nature of the business of the Corporation and the purposes
for which it is organized are to engage in any business and in any lawful act or
activity for which corporations may be organized under the NYBCL. For the
accomplishment of the aforesaid purposes and in furtherance thereof, the
Corporation shall have, and may exercise, all powers and privileges now or
hereafter granted or available under the laws of the State of New York to such
corporations.
-2-
<PAGE> 3
ARTICLE V
5.1. CAPITAL STOCK.
(a) CLASSES. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 66,000,000, of which (a)
60,000,000 shares shall be common stock, $.01 par value per share ("COMMON
STOCK"), and (b) 6,000,000 shares shall be preferred stock, $.01 par value per
share ("PREFERRED STOCK").
(b) NO PREEMPTIVE RIGHTS. No shareholder of the Corporation shall
have any preemptive rights to purchase, subscribe for or otherwise acquire any
capital stock or other securities of the Corporation, whether now or hereafter
authorized, and any and all preemptive rights hereby are denied.
5.2. COMMON STOCK. The powers, designations, preferences and relative
participating, optional or other special rights and the qualifications,
limitations and restrictions of the Common Stock are as follows:
(a) DIVIDENDS. Subject to the rights of the holders of Preferred
Stock, the holders of the Common Stock shall be entitled to receive when, as,
and if declared by the Board of Directors of the Corporation (the "BOARD"), out
of funds legally available therefor, dividends payable in cash, stock or
otherwise.
(b) DISTRIBUTIONS UPON LIQUIDATION. In the event of a voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
after the holders of Preferred Stock shall have received the full preferential
amounts (if any) to which such holders are entitled, the holders of Common Stock
shall be entitled to share in the distribution of any remaining assets available
for distribution to the holders of Common Stock.
(c) VOTING RIGHTS. Subject to the voting rights granted to the
holders of Preferred Stock, the holders of Common Stock shall be entitled to one
(1) vote per share in voting on the election of directors and for all other
corporate purposes.
5.3. PREFERRED STOCK. The Corporation shall have the authority to issue
shares of Preferred Stock. The Board hereby is authorized, without further
shareholder approval, to issue shares of Preferred Stock in one or more series
and to fix the rights, preferences, privileges and restrictions thereof,
including dividend rights, voting rights, terms of redemption and liquidation
preferences, and to fix the number of shares constituting any series and the
designations of such series.
-3-
<PAGE> 4
ARTICLE VI
[RESERVED]
ARTICLE VII
7.1. POWER OF BOARD AND QUALIFICATION OF DIRECTORS. The business of the
Corporation shall be managed by the Board. Each director shall be at least 18
years of age.
7.2. NUMBER OF DIRECTORS. The number of directors of the Corporation
shall be not less than three (3) nor more than fifteen (15), and shall be fixed
from time to time by the affirmative vote of more than two-thirds (2/3) of the
total number of directors which the Corporation would have, prior to any
increase or decrease, if there were no vacancies.
7.3. CLASSES, ELECTION AND TERM. The Board shall be divided into three
(3) classes, with each class to be as nearly equal in number as reasonably
possible. The term of office of each class of directors shall be three years and
shall expire in successive years at the time of the annual meeting of
shareholders. Effective as of the date this Restated Certificate of
Incorporation is filed with the Department of State of the State of New York,
the identity of the directors of the Corporation and the classes into which such
directors shall be divided shall be as follows:
Class I (term of office expiring at the 1999 annual meeting of
shareholders) -- _____________________________;
Class II (term of office expiring at the 2000 annual meeting of
shareholders) -- _____________________________; and
Class III (term of office expiring at the 2001 annual meeting of
shareholders) -- _____________________________.
Directors elected to succeed those directors whose terms have
expired at an annual meeting shall be elected for a term of office to expire at
the third succeeding annual meeting of shareholders after their election, and
upon the election and qualification of their successors. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain or attain the number of directors in each class as
nearly equal as reasonably possible, but in no case shall a decrease in the
number of directors shorten the term of any incumbent director.
7.4. RESIGNATIONS. Any director of the Corporation may resign at any
time by giving written notice to the Board or to the Chairman of the Board or to
the Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein the acceptance of such
resignation shall not be necessary to make it effective.
-4-
<PAGE> 5
7.5. REMOVAL OF DIRECTORS. Except as may be provided in a resolution
which provides for any class of Preferred Stock pursuant to Article V hereof and
which relates to such class of Preferred Stock, (i) any one or more directors
may be removed only for cause by the affirmative vote of a majority of the
directors then in office and (ii) any or all of the directors may be removed
only for cause by the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the combined voting power of all of the shares
of all classes of capital stock of the Corporation then entitled to vote
generally in the election of directors.
7.6. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as may be
provided in a resolution which provides for any class of Preferred Stock
pursuant to Article V hereof and which relates to such class of Preferred Stock,
newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the Board for any reason may be filled only
by vote of a majority of the directors then in office, even if less than a
quorum exists. A director elected by the Board to fill a vacancy shall be
elected to hold office until the next annual meeting of shareholders and until
such director's successor has been elected and qualified.
ARTICLE VIII
The Board shall have the power to adopt, amend, alter, change or
repeal the By-laws. In addition to any requirements of the NYBCL (and
notwithstanding the fact that a lesser percentage may be specified by the
NYBCL), any adoption, amendment, alteration, change or repeal of any By-laws by
the shareholders of the Corporation shall require the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the combined
voting power of all of the shares of all classes of capital stock of the
Corporation then entitled to vote generally in the election of directors.
ARTICLE IX
9.1. SPECIAL MEETING OF SHAREHOLDERS. Special meetings of shareholders
may only be called by the Board, the Chairman of the Board or the Chief
Executive Officer. At such meetings, the only business which may be transacted
is that relating to the purpose or purposes set forth in the notice thereof.
9.2. [RESERVED]
9.3. NO ACTION BY WRITTEN CONSENT OF SHAREHOLDERS. Except as may be
provided in a resolution of the Board which provides for any class or series of
Preferred Stock pursuant to Article V hereof and which relates to such class of
Preferred Stock, any action required or permitted to be taken by the
shareholders of the Corporation must be effected at a duly called annual or
special meeting of such shareholders as provided in the By-laws and may not be
effected by any consent in writing by any such shareholders.
-5-
<PAGE> 6
ARTICLE X
A director of the Corporation shall, to the maximum extent
permitted by the NYBCL, have no personal liability to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director. If
the NYBCL hereafter is amended to eliminate or further limit the liability of a
director, then a director of the Corporation, in addition to the circumstances
in which a director is not personally liable as set forth in the preceding
sentence, shall have no such liability to the fullest extent permitted by the
amended NYBCL. Any repeal or modification of this Article X by the shareholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
ARTICLE XI
The Corporation shall have authority, to the fullest extent now
or hereafter permitted by the NYBCL, or by any other applicable law, and to the
extent and in the manner provided in the By-laws, to enter into any contract or
transaction with one or more of its directors or officers, or with any
corporation, partnership, joint venture, trust, association, or other entity in
which one or more of its directors or officers are directors or officers, or
have a financial interest, notwithstanding such relationships and
notwithstanding the fact that the director or officer is present at or
participates in the meeting of the Board or committee thereof which authorizes
the contract or transaction.
ARTICLE XII
12.1. GENERAL RIGHT TO AMEND RESTATED CERTIFICATE OF INCORPORATION. The
Corporation hereby reserves the right to amend, alter, change or repeal any
provision contained in this Restated Certificate of Incorporation, and all
rights conferred upon shareholders are granted subject to this reservation.
Except as may be provided in a resolution which provides for any class of
Preferred Stock pursuant to Article V hereof and which relates to such class of
Preferred Stock, any such amendment, alteration, change or repeal shall require
the affirmative vote of both (a) a majority of the members of the Board then in
office and (b) except as provided in Section 12.3 below, a majority of the
combined voting power of all of the shares of all classes of capital stock of
the Corporation then entitled to vote generally in the election of directors.
12.2. ABANDONMENT OF PROPOSED AMENDMENT. By a vote of the majority of
the members of the Board then in office, the Board may adopt a resolution
providing that at any time prior to the filing of any such amendment with the
Secretary of State, notwithstanding authorization of the proposed amendment by
the shareholders, the Board may abandon such proposed amendment without further
action by the shareholders.
-6-
<PAGE> 7
12.3. AMENDMENT OF CERTAIN PROVISIONS. Notwithstanding anything
contained in this Restated Certificate of Incorporation to the contrary, the
affirmative vote of both (a) a majority of the members of the Board then in
office and (b) except as may be provided in a resolution which provides for any
class of Preferred Stock pursuant to Article V hereof and which relates to such
class of Preferred Stock, the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the combined voting power of all of the shares of all
classes of capital stock of the Corporation then entitled to vote generally in
the election of directors shall be required to amend, repeal or adopt any
provision inconsistent with Section 7.3, Section 7.5, Section 7.6, Article VIII
or Article IX hereof or this Section 12.3.
ARTICLE XIII
The duration of the Corporation is to be perpetual.
* * * *
5. This Restated Certificate of Incorporation has been
approved by the unanimous written consent of the Board and by the written
consent of the holders of the requisite number of the outstanding shares of the
Corporation's capital stock.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-7-
<PAGE> 8
IN WITNESS WHEREOF, the undersigned have executed this Restated
Certificate of Incorporation as of this ___ day of August, 1998 and we affirm
the statements contained herein are true under the penalties of perjury.
---------------------------------
J. Raymond Lewis, Jr., President
---------------------------------
Daniel A. Raskas, Secretary
-8-
<PAGE> 1
<TABLE>
<S> <C> <C>
NUMBER [GLOBAL VACATION GROUP LOGO] SHARES
G
COMMON STOCK
PAR VALUE $.01
INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR CERTAIN DEFINITIONS
THE STATE OF NEW YORK GLOBAL VACATION GROUP, INC. CUSIP 37937F 10 6
</TABLE>
THIS CERTIFIES THAT
IS THE OWNER OF
CERTIFICATE OF STOCK
FULLY-PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
GLOBAL VACATION GROUP, INC. (hereinafter called the Corporation) transferable on
the books of the Corporation by said owner in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed. This Certificate
and the shares represented hereby are issued and shall be held subject to all of
the provisions of the Corporation's Certificate of Incorporation and By-laws, as
amended (copies of which are on file with the Transfer Agent), to all of which
the holder by acceptance hereto assents.
This Certificate is not valid unless countersigned by the Transfer
Agent and registered by the Registrar. Witness the facsimile seal and
the facsimile signatures of the duly authorized officers of the
Corporation.
GLOBAL VACATION GROUP, INC.
CORPORATE
SEAL
1959
NEW YORK
*
<TABLE>
<S> <C> <C>
Dated
COUNTERSIGNED AND REGISTERED:
XXXXXXXXXXX
TRANSFER AGENT
AND REGISTRAR
BY /s/ WALTER S. BERMAN [SIG]
AUTHORIZED SIGNATURE EXECUTIVE VICE PRESIDENT AND TREASURER CHAIRMAN AND CHIEF EXECUTIVE OFFICER
</TABLE>
AMERICAN BANK NOTE COMPANY
<PAGE> 2
GLOBAL VACATION GROUP, INC.
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND
WITHOUT CHARGE A FULL STATEMENT OF THE DESIGNATION, RELATIVE RIGHTS, PREFERENCES
AND LIMITATIONS OF THE SHARES OF EACH CLASS OF STOCK OR SERIES THEREOF
AUTHORIZED TO BE ISSUED BY THE CORPORATION. SUCH REQUEST MAY BE MADE TO THE
CORPORATION OR THE TRANSFER AGENT.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT--..........Custodian..........
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act..............
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received,............hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------
| |
--------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
shares
- --------------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
- ------------------------------------------------------------------------
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
-----------------------------
<TABLE>
<S> <C>
------------------------------------------------------------------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE OF
THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED
</TABLE>
By
---------------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION,
(Banks, Stockbrokers, Savings and Loan Associations and Credit Unions) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM PURSUANT TO
S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
<PAGE> 1
EXHIBIT 5.1
July 27, 1998
Board of Directors
Global Vacation Group, Inc.
1420 New York Avenue, N.W.
Suite 550
Washington, DC 20005
Dear Gentlemen:
We are acting as counsel to Global Vacation Group, Inc., a New
York corporation (the "COMPANY"), in connection with its registration statement
on Form S-1, as amended (File No. 333-52673) (the "REGISTRATION STATEMENT")
filed with the Securities and Exchange Commission relating to the proposed
public offering of up to 3,450,000 shares (including 450,000 shares to cover
over-allotments, if any) of the Company's common stock, $.01 par value per
share, all of which shares (the "SHARES") are to be sold by the Company or
certain shareholders of the Company. This opinion letter is furnished to you at
your request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. The Restated Certificate of Incorporation of the
Company, as amended, as certified by the Secretary of
the State of the State of New York and by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
3. The Amended and Restated By-laws of the Company, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
<PAGE> 2
Board of Directors
Global Vacation Group, Inc.
Page 2
July 27, 1998
4. An executed copy of that certain Recapitalization
Agreement dated as of March 18, 1998 by and among the
Company, Allied Tours Holding Corp., the shareholders
of the Company, Thayer Equity Investors III, L.P.
("THAYER") and certain other investors, filed as
Exhibit 10.1 to the Registration Statement.
5. An executed copy of that certain Equity Purchase
Agreement dated as of March 30, 1998 among the
Company, Thayer and certain other purchasers, filed
as Exhibit 10.2 to the Registration Statement.
6. The proposed form of Underwriting Agreement among the
Company, Thayer and the several Underwriters to be
named therein, for whom Smith Barney Inc.,
NationsBanc Montgomery Securities LLC, BancAmerica
Robertson Stephens and ING Baring Furman Selz will
act as representatives, filed as Exhibit 1.1 to the
Registration Statement (the "UNDERWRITING
AGREEMENT").
7. Resolutions of the Board of Directors of the Company
adopted on March 17, 1998, March 27, 1998, March 30,
1998, April 30, 1998, May 6, 1998, May 14, 1998, June
24, 1998 and July 7, 1998, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect, relating to
the issuance and sale of the Shares and arrangements
in connection therewith.
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of all natural persons,
the accuracy and completeness of all documents submitted to us, the authenticity
of all original documents and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
This opinion letter is based as to matters of law solely on
the New York Business Corporation Law. We express no opinion herein as to any
other laws, statutes, regulations or ordinances.
Based upon, subject to and limited by the foregoing, we are of
the opinion that following (i) final action of the Board of Directors of the
Company
<PAGE> 3
Board of Directors
Global Vacation Group, Inc.
Page 3
July 27, 1998
approving the price of the Shares, (ii) execution and delivery by the Company of
the Underwriting Agreement, (iii) effectiveness of the Registration Statement,
(iv) sale of the Shares pursuant to the terms of the Underwriting Agreement and
(v) receipt by the Company of the consideration for the Shares specified in the
resolutions of the Board of Directors referred to above, the Shares will be
validly issued, fully paid and (subject to any liability imposed by Section 630
of the New York Business Corporation Law) nonassessable under the New York
Business Corporation Law.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the Registration Statement and to the reference to this firm
under the caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE> 1
EXHIBIT 10.21
AMENDMENT NO. 1
TO
SENIOR MANAGEMENT AGREEMENT
MADE AS OF MARCH 30, 1998
BETWEEN
GLOBAL VACATION GROUP, INC.
AND
ROGER H. BALLOU
WHEREAS, Global Vacation Group, Inc., a New York corporation (the
"Company"), and Roger H. Ballou ("Executive") entered into that certain Senior
Management Agreement dated as of March 30, 1998 (the "Agreement"); and
WHEREAS, the Company and Executive wish to amend the Agreement as set
forth herein;
NOW, THEREFORE, the Company and Executive hereby agree as follows:
1. Recital A. The second sentence of Recital A to the Agreement hereby is
amended by deleting therefrom:
"and all shares of Preferred Stock and Common Stock hereafter
acquired by Executive".
2. Section 2 (Vesting of Certain Executive Stock). The second sentence of
Section 2(d) of the Agreement hereby is amended and restated in its
entirety to read as follows:
"Shares of Executive Stock which have become vested (whether pursuant
to Section 2(a) or 2(b) above or upon purchase thereof (i.e., the
shares referred to in Section 2(c) above)) are referred to herein as
'VESTED SHARES,' and all other shares of Common Stock are referred to
herein as 'UNVESTED SHARES.'"
3. Section 3 (Repurchase Option).
(a) Section 3(a) of the Agreement hereby is amended by inserting the
following language between ", then" and "all of the executive Stock" in
the second line thereof:
", subject to Section 3(g) below,".
(b) Section 3(c) of the Agreement hereby is amended by deleting the word
"The" from the beginning of the paragraph and replacing it with the
following language:
"Subject to Section 3(g) below, the".
<PAGE> 2
(c) Section 3 hereby is amended further by the addition of a new Section
3(g) as follows:
"(g) Notwithstanding any other provision of this Agreement, after the
closing date of the Initial Public Offering, Vested Shares shall not
be subject to the Repurchase Option."
4. Section 4 (Restrictions on Transfer of Executive Stock). Section 4 of
the Agreement hereby is amended by adding the following sentence after
the completion of the existing text:
"Except for Permitted Transfers and Transfers pursuant to the
Repurchase Option, the Executive may not transfer or cause or permit
to be transferred any Unvested Shares, and any purported Transfer in
violation hereof shall be null and void."
5. Section 7 (Provisions Relating to Employment). The definition of
"PERFORMANCE CAUSE" in Section 7(c)(i) of the Agreement hereby is amended
by deleting the reference to "Section 9(h)" where it appears in the
second paragraph of such definition and replacing it with a reference to
"Section 12(h)."
6. Section 10 (Definitions). Section 10 of the Agreement hereby is
amended by deleting therefrom the definition of "PERMITTED TRANSFEREE"
and by adding thereto the following definitions:
"'FAMILY MEMBERS' with respect to an individual shall mean such
individual's spouse, parents, siblings and children."; and
"'PERMITTED TRANSFER' shall mean a transfer of Unvested Shares by the
Executive to (i) one or more Family Members of the Executive or (ii)
to a trust solely for the benefit of one or more Family Members of
the Executive, provided that, prior to any such Transfer, each
transferee shall agree in writing, in a form satisfactory to the
Company, that such transferee shall receive and hold such Unvested
Shares subject to the provisions of this Agreement."
7. Section 11 (Notices). Section 11 of the Agreement hereby is amended by
changing the address of the Executive to the following:
"Roger H. Ballou
c/o Global Vacation Group, Inc.
1420 New York Avenue, N.W., Suite 550
Washington, D.C. 20005
Tel No.: (202) 347-1800
Fax No.: (202) 347-0710"
8. Remaining Provisions. In all other respects, the Agreement remains
unchanged.
* * * * *
2
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 1 as of this 24th day of June, 1998.
GLOBAL VACATION GROUP, INC.
By: /s/ J. Raymond Lewis, Jr.
---------------------------------------
J. Raymond Lewis, Jr.
President and Chief Operating Officer
/s/ Roger H. Ballou
--------------------------------------------
ROGER H. BALLOU
3
<PAGE> 1
EXHIBIT 10.22
AMENDMENT NO. 1
TO
SENIOR MANAGEMENT AGREEMENT
MADE AS OF MARCH 30, 1998
BETWEEN
GLOBAL VACATION GROUP, INC.
AND
J. RAYMOND LEWIS, JR.
WHEREAS, Global Vacation Group, Inc., a New York corporation (the
"Company"), and J. Raymond Lewis, Jr. ("Executive") entered into that certain
Senior Management Agreement dated as of March 30, 1998 (the "Agreement"); and
WHEREAS, the Company and Executive wish to amend the Agreement as set
forth herein;
NOW, THEREFORE, the Company and Executive hereby agree as follows:
1. Recital A. The second sentence of Recital A to the Agreement hereby is
amended by deleting therefrom:
"and all shares of Preferred Stock and Common Stock hereafter
acquired by Executive".
2. Section 2 (Vesting of Certain Executive Stock). The second sentence of
Section 2(d) of the Agreement hereby is amended and restated in its
entirety to read as follows:
"Shares of Executive Stock which have become vested (whether pursuant
to Section 2(a) or 2(b) above or upon purchase thereof (i.e., the
shares referred to in Section 2(c) above)) are referred to herein as
'VESTED SHARES,' and all other shares of Common Stock are referred to
herein as 'UNVESTED SHARES.'"
3. Section 3 (Repurchase Option).
(a) Section 3(a) of the Agreement hereby is amended by inserting the
following language between ", then" and "all of the executive Stock" in
the second line thereof:
", subject to Section 3(g) below,".
(b) Section 3(c) of the Agreement hereby is amended by deleting the word
"The" from the beginning of the paragraph and replacing it with the
following language:
"Subject to Section 3(g) below, the".
<PAGE> 2
(c) Section 3 hereby is amended further by the addition of a new Section
3(g) as follows:
"(g) Notwithstanding any other provision of this Agreement, after the
closing date of the Initial Public Offering, Vested Shares shall not
be subject to the Repurchase Option."
4. Section 4 (Restrictions on Transfer of Executive Stock). Section 4 of
the Agreement hereby is amended by adding the following sentence after
the completion of the existing text:
"Except for Permitted Transfers and Transfers pursuant to the
Repurchase Option, the Executive may not transfer or cause or permit
to be transferred any Unvested Shares, and any purported Transfer in
violation hereof shall be null and void."
5. Section 7 (Provisions Relating to Employment). The definition of
"PERFORMANCE CAUSE" in Section 7(c)(i) of the Agreement hereby is amended
by deleting the reference to "Section 9(h)" where it appears in the
second paragraph of such definition and replacing it with a reference to
"Section 12(h)."
6. Section 10 (Definitions). Section 10 of the Agreement hereby is
amended by deleting therefrom the definition of "PERMITTED TRANSFEREE"
and by adding thereto the following definitions:
"'FAMILY MEMBERS' with respect to an individual shall mean such
individual's spouse, parents, siblings and children."; and
"'PERMITTED TRANSFER' shall mean a transfer of Unvested Shares by the
Executive to (i) one or more Family Members of the Executive or (ii)
to a trust solely for the benefit of one or more Family Members of
the Executive, provided that, prior to any such Transfer, each
transferee shall agree in writing, in a form satisfactory to the
Company, that such transferee shall receive and hold such Unvested
Shares subject to the provisions of this Agreement."
7. Section 11 (Notices). Section 11 of the Agreement hereby is amended by
changing the address of the Executive to the following:
"J. Raymond Lewis, Jr.
c/o Global Vacation Group, Inc.
1420 New York Avenue, N.W., Suite 550
Washington, D.C. 20005
Tel No.: (202) 347-1800
Fax No.: (202) 347-0710"
8. Remaining Provisions. In all other respects, the Agreement remains
unchanged.
* * * * *
2
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 1 as of this 24th day of June, 1998.
GLOBAL VACATION GROUP, INC.
By: /s/ Roger H. Ballou
---------------------------------------
Roger H. Ballou
Chairman and Chief Executive Officer
/s/ J. Raymond Lewis, Jr.
------------------------------------------------
J. RAYMOND LEWIS, JR.
3
<PAGE> 1
EXHIBIT 10.23
AMENDMENT NO. 1
TO
SENIOR MANAGEMENT AGREEMENT
MADE AS OF MARCH 30, 1998
BETWEEN
GLOBAL VACATION GROUP, INC.
AND
WALTER S. BERMAN
WHEREAS, Global Vacation Group, Inc., a New York corporation (the
"Company"), and Walter S. Berman ("Executive") entered into that certain Senior
Management Agreement dated as of March 30, 1998 (the "Agreement"); and
WHEREAS, the Company and Executive wish to amend the Agreement as set
forth herein;
NOW, THEREFORE, the Company and Executive hereby agree as follows:
1. Recital A. The second sentence of Recital A to the Agreement hereby is
amended by deleting therefrom:
"and all shares of Preferred Stock and Common Stock hereafter
acquired by Executive".
2. Section 2 (Vesting of Certain Executive Stock). The second sentence of
Section 2(d) of the Agreement hereby is amended and restated in its
entirety to read as follows:
"Shares of Executive Stock which have become vested (whether pursuant
to Section 2(a) or 2(b) above or upon purchase thereof (i.e., the
shares referred to in Section 2(c) above)) are referred to herein as
'VESTED SHARES,' and all other shares of Common Stock are referred to
herein as 'UNVESTED SHARES.'"
3. Section 3 (Repurchase Option).
(a) Section 3(a) of the Agreement hereby is amended by inserting the
following language between ", then" and "all of the executive Stock" in
the second line thereof:
", subject to Section 3(g) below,".
(b) Section 3(c) of the Agreement hereby is amended by deleting the word
"The" from the beginning of the paragraph and replacing it with the
following language:
"Subject to Section 3(g) below, the".
<PAGE> 2
(c) Section 3 hereby is amended further by the addition of a new Section
3(g) as follows:
"(g) Notwithstanding any other provision of this Agreement, after the
closing date of the Initial Public Offering, Vested Shares shall not
be subject to the Repurchase Option."
4. Section 4 (Restrictions on Transfer of Executive Stock). Section 4 of
the Agreement hereby is amended by adding the following sentence after
the completion of the existing text:
"Except for Permitted Transfers and Transfers pursuant to the
Repurchase Option, the Executive may not transfer or cause or permit
to be transferred any Unvested Shares, and any purported Transfer in
violation hereof shall be null and void."
5. Section 7 (Provisions Relating to Employment). The definition of
"PERFORMANCE CAUSE" in Section 7(c)(i) of the Agreement hereby is amended
by deleting the reference to "Section 9(h)" where it appears in the
second paragraph of such definition and replacing it with a reference to
"Section 12(h)."
6. Section 10 (Definitions). Section 10 of the Agreement hereby is
amended by deleting therefrom the definition of "PERMITTED TRANSFEREE"
and by adding thereto the following definitions:
"'FAMILY MEMBERS' with respect to an individual shall mean such
individual's spouse, parents, siblings and children."; and
"'PERMITTED TRANSFER' shall mean a transfer of Unvested Shares by the
Executive to (i) one or more Family Members of the Executive or (ii)
to a trust solely for the benefit of one or more Family Members of
the Executive, provided that, prior to any such Transfer, each
transferee shall agree in writing, in a form satisfactory to the
Company, that such transferee shall receive and hold such Unvested
Shares subject to the provisions of this Agreement."
7. Section 11 (Notices). Section 11 of the Agreement hereby is amended by
changing the address of the Executive to the following:
"Walter S. Berman
c/o Global Vacation Group, Inc.
1420 New York Avenue, N.W., Suite 550
Washington, D.C. 20005
Tel No.: (202) 347-1800
Fax No.: (202) 347-0710"
8. Remaining Provisions. In all other respects, the Agreement remains
unchanged.
* * * * *
2
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 1 as of this 24th day of June, 1998.
GLOBAL VACATION GROUP, INC.
By: J. Raymond Lewis, Jr.
------------------------------------------
J. Raymond Lewis, Jr.
President and Chief Operating Officer
/s/ Walter S. Berman
------------------------------------------------
WALTER S. BERMAN
3
